Conscience Victory in Washington

Court Allows Pharmacists to Reject Scrips for Contraceptives

OLYMPIA — A federal court in Tacoma, Wash., struck down a state rule requiring pharmacists to dispense Plan B, the “emergency contraceptive” that is also an abortifacient, even if doing so would violate their religious beliefs.

The court ruled on Ash Wednesday that the rule violated the First Amendment right to free exercise of religion.

The Feb. 22 ruling declared the Washington State Pharmacy Board’s regulations unconstitutional under the Free Exercise Clause of the First Amendment and under the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

In 2006, the Washington State Board of Pharmacy voted to protect pharmacists’ right of conscience. Democratic Gov. Christine Gregoire then replaced board members with those who favored conscience-violating policies.

The following year, the Board of Pharmacy passed a regulation prohibiting the referral of customers to other pharmacies when one had a religious objection to filling a Plan B prescription. The board took this action even though other pharmacists were allowed to refer customers elsewhere for business or convenience reasons.

Margo Thelen was fired by her employer because she refused to dispense Plan B, and Rhonda Mesler had been told she would likely be fired if the regulations were upheld. Kevin Stormans, owner of Ralph’s Thriftway in Olympia, was under a state investigation for not stocking or dispensing Plan B, one of the over 6,000 legal drugs on the market. No customer complaints had been filed against either of the pharmacists or Ralph’s Thriftway until Planned Parenthood sent “test shoppers” to Ralph’s.

As part of a storewide policy, Ralph’s employees told customers who requested Plan B where they could find it nearby. Thelen and Mesler, who worked at other pharmacies, both had an agreement with their employers that they would not dispense Plan B. The request would be referred to another pharmacist on duty, or, when alone, Thelen and Mesler would refer customers to other pharmacies.

In 2007, Stormans, Thelen and Mesler filed a lawsuit claiming the new state regulations were a violation of religious freedom protected by the U.S. Constitution. They were represented by the Washington, D.C.-based Becket Fund for Religious Liberty and by the law firm of Ellis, Li & McKinstry in Seattle. The Becket Fund is currently representing EWTN, the parent company of the Register, in a case against the Department of Health and Human Services.

The plaintiffs, Stormans, Thelen and Mesler, argued that the new regulations violated the First Amendment by permitting many exemptions for secular business reasons but none for religious conscience reasons. A pharmacy is allowed to decline carrying a particular drug and refer customers elsewhere if that drug has a short shelf life, generates a small profit margin or requires too much paperwork.

U.S. District Judge Ronald Leighton granted a temporary injunction in favor of Stormans and the two pharmacists in November 2007. He stated that “the regulations appear to target religious practice in a way forbidden by the Constitution” and “appear to intentionally place a significant burden on the free exercise of religion for those who believe life begins at conception.”

Washington state attorneys appealed to the Ninth Circuit Court in July 2009. The three-judge panel decided that pharmacists would likely have to follow the pharmacy board’s regulations, even if doing so violated their consciences. The issue was brought before a federal court again, with closing arguments heard on Feb. 1, 2012.

Dan Kennedy, CEO of Human Life of Washington, the state’s largest pro-life group, believed that the court was provided with compelling evidence that the pharmacy board exempts numerous pharmacies from having to stock certain medications for various non-religious reasons and that the board’s refusal to consider religious reasons was therefore clearly discriminatory.

Kennedy was pleased with Judge Leighton’s decision to grant a permanent injunction against the regulations.

“The First Amendment protection of both freedom of religion and the right of conscience was at stake. The state, in a heavy-handed manner, clearly transgressed its constitutional boundaries by trying to force an abortion agenda on all pharmacists and pharmacies. Thanks to today’s court ruling, there is still room in this state for tolerance of diverse moral principles.”

Margo Thelen, one of the plaintiffs, applauded the decision. “I’m just thrilled that the court ruled to protect our constitutional right of conscience,” she said. “I was forced to leave a job I loved simply because of my deeply held religious convictions.”

Luke Goodrich, deputy national litigation director for the Becket Fund, stressed that religious beliefs should not be used to justify the expulsion of someone from a profession: “If pharmacies can refer patients elsewhere when a drug is unprofitable or out of stock, they should be allowed to do the same thing when the drugs violate their deepest religious convictions. Today’s decision sends a very clear message: No individual can be forced out of her profession solely because of her religious beliefs.”

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